July 24
TEXAS:
Appeal of Gangbanger on Death Row Is Shot Down
A member of the Mexican Mafia who faces the death penalty for killing a drug
dealer over money cannot appeal his conviction and sentence, a federal judge
ruled.
In 1998, Manuel "Meme" Vasquez strangled San Antonio drug dealer Juanita Ybarra
with a cord for allegedly brushing off "the dime" - a 10 % tax on narcotic
sales collected by the Mexican Mafia.
Moses Bazan was with Ybarra in a motel room when Vasquez forced himself in
along with Johnny Joe Cruz and Oligario "Bebe" Lujan to carry out the kill
order.
A jury in Bexar County, Texas, convicted Vasquez of capital murder in November
1999 and sentenced him to death.
After failing to find relief in state court, Vasquez petitioned for federal
habeas relief.
U.S. District Judge Xavier Rodriguez rejected that petition Thursday and denied
him a certificate of appealability.
Vasquez had claimed that Latinos were underrepresented in his jury, but
Rodriguez disputed the attempt to identify juror ethnicity based on their last
names.
Rodriguez also disagreed that defense counsel improperly failed to seek a
limiting jury instruction concerning Vasquez's gang affiliation.
"With or without a limiting jury instruction, petitioner's jury was going to
learn of petitioner's Mexican Mafia membership and hear Cruz's testimony
regarding the reasons why petitioner and Lujan (both Mexican Mafia members)
broke into Ybarra's and Bazan's motel room, fatally strangled Ybarra, very
nearly killed Bazan, ransacked the room, stole valuables, and then retreated to
the home of another individual with ties to the Mexican Mafia," Rodriguez wrote
(parentheses in original).
Vasquez waited to challenge the wording of the jury charge for the punishment
phase until he applied for state habeas corpus relief, the decision states.
"Petitioner argues, without any citation to authority, that because his trial
counsel did not make a contemporaneous objection to the alleged defects
contained in his punishment phase jury charge included in petitioner's final 2
claims herein, those complaints were not properly preserved for state appellate
review and, therefore, petitioner's procedural default in failing to present
those claims as part of his direct appeal should be forgiven," Rodriguez wrote.
"There is, however, no legal support for petitioner's proposed 'new rule'
suggesting that 2 state procedural defaults cancel each other out. That
petitioner procedurally defaulted at trial by not timely objecting to alleged
defects in his punishment phase jury charge and thereafter procedurally
defaulted again by failing to present his complaints about his punishment phase
jury charge on direct appeal does not transform petitioner's twice procedurally
defaulted claims into claims properly subject to federal habeas review. To hold
otherwise would stand the principle of procedural default on its head."
(source: Courthouse News)
GEORGIA:
US state grants death row inmate temporary reprieve
The supreme court in the southern US state of Georgia on Monday gave a
temporary reprieve to a man sentenced to death for murder just 2 hours ahead of
his scheduled execution.
Warren Hill was scheduled to be executed by lethal injection at 7 pm (2300 GMT)
for killing a fellow inmate.
The 52-year-old African-American, who has spent the last 21 years on death row,
reportedly has an IQ of 70, which puts him below the threshold for mental
disability.
The US Supreme Court ruled against the execution of prisoners with mental
disabilities in 2002, saying the disability "would run the risk of a wrongful
execution." However, the Court left each state with the authority to determine
what constitutes mental disability.
Hill was to be the 1st person in Georgia to be put to death using a single
drug, pentobarbital, instead of the previously standard three-drug cocktail.
The state supreme court ruled unanimously to grant a stay of execution, saying
it needed to investigate whether a lower court erred in determining that the
change in execution protocol was legal under Georgia law.
The court will offer its own ruling on whether the new execution method is
legal, which could take weeks.
"Georgia, almost on the eve of the execution, switched to a different method,
pretty radically different," Death Penalty Information Center director Richard
Dieter told AFP.
There have been "only a handful of executions with this one drug," he added,
saying "if you want to use it, you need to know a lot more."
The case also highlights questions over the severity of Georgia's criteria to
define who is mental handicapped.
While Georgia requires proof of mental disability "beyond a reasonable doubt,"
all 49 other states consider "a preponderance of evidence" enough proof.
The US Supreme Court had declined to review Hill's case, but his lawyers have
requested they reconsider.
Monday, a source familiar with the matter said the Court will hold off on
deciding whether to hear an appeal now that the execution has been postponed.
Georgia was "the 1st state to ban the death penalty for people with mental
retardation," Dieter said, but because it was first, it created "a very strict
standard."
He said the it should be up to the Supreme Court to decide the the norms and to
"control the states that are outside" them.
Last week, a Georgia judge ruled that Hill was intellectually disabled to a
lesser degree than the state requires to preclude the death penalty.
But "the problem is that Georgia makes the proof requirement essentially
impossible to meet for defendants who clearly have mental retardation," one of
Hill's lawyers, James Ellis, told AFP.
Several high profile figures - including former US president Jimmy Carter, as
well as the family of Hill's victim - have for Georgia to commute Hill's
sentence to life in prison.
France and a UN human rights expert have also called for the execution to be
suspended.
(source: AsiaOne)
******************
Ga. Supreme Court stays execution in mental retardation case
The Georgia Supreme Court on Monday evening stayed the execution of a death row
inmate whose IQ of 70 falls within the range of mental retardation, the man's
lawyer confirmed to USA TODAY.
"I'm just thrilled," Brian Kammer, lawyer for inmate Warren Lee Hill, said in a
phone interview. "It was getting down to the wire."
Hill was slated to die by lethal injection at the Georgia Diagnostic and
Classification Prison in Jackson, Ga., but the death scheduled for 7 p.m. ET
Monday marked a delay of a few days called for by the Georgia Department of
Corrections because the state was changing to protocol for its lethal injection
cocktail.
The court wants to make sure this change complies with state law, Kammer tells
USA TODAY.
The court also rejected Hill's request to stay the execution on a mental
disability claim.
Hill, 52, was convicted in the death of his prison cellmate, who he beat to
death with a wooden board imbedded with nails back in 1990. At the time, Hill
was serving time for the death of his girlfriend, who he shot 11 times.
Kammer said litigation on the new issue could take months.
(source: USA Today)
*********************
Impossible Proof: Intellectual Disabilities and the Death Penalty
Terrica Ganzy, Staff Attorney for the Southern Center for Human Rights, argues
Warren Hill was improperly sentenced to death and that Georgia should adopt a
"preponderance of evidence" standard for mentally disabled claims in capital
offense cases.
10 years ago, the US Supreme Court, in Atkins v. Virginia, declared that
executing those with intellectual disabilities, formerly "mental retardation,"
violates the US Constitution. The Court reasoned that the limitations of
defendants with intellectual disabilities places them at "special risk of
wrongful execution." The Court defined intellectual disabilities using the 3
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV TR) criteria: (1)
significant sub-average intellectual functioning (an IQ score of approximately
70 or below); (2) significant adaptive behavior deficits; and (3) manifestation
of these limitations before the age of 18. Warren Lee Hill is scheduled to be
executed by the State of Georgia on July 23, 2012, for the 1990 murder of a
fellow inmate. According to evidence presented in court, Hill has an IQ of 70
and has significant adaptive deficits that manifested before age 18. Hill has
already been adjudicated to have an intellectual disability by a Georgia state
court judge, using a preponderance of the evidence standard. But according to
the state of Georgia, Mr. Hill is not exempted from execution. Why? Hill faces
execution — despite meeting the Supreme Court's definition, despite having been
found by a judge to have an intellectual disability and despite the State
conceding that Mr. Hill has intellectual disabilities — solely because he has
failed to meet Georgia's strict "beyond a reasonable doubt" standard of proof.
Georgia is the only state in the nation that requires proof beyond a reasonable
doubt for intellectual disabilities claims. Almost all other states use a
preponderance of the evidence standard of proof, and a few use the "clear and
convincing" standard. The beyond a reasonable doubt standard is nearly
impossible to meet in the context of intellectual disability due, in part, to
the wide range of intellectual functioning that fits within the spectrum of
mental retardation. For example, a person with intellectual disability (IQ of
50 to 70) may be able to live independently and keep a job, whereas a person
suffering from profound intellectual disability (IQ of 20 or below) may need
full time care. Applying a beyond a reasonable doubt standard to such claims
necessarily excludes the upper end of the spectrum, where defendants, although
clearly within the limits of sub-average intellectual functioning and suffering
from demonstrable adaptive behavior deficits, function at a level that could
create a reasonable doubt in the minds of the average finder of fact. As
Justice Leah Ward Sears, in her dissent to the Georgia Supreme Court's ruling
on the state's appeal, so aptly stated:
Despite the federal ban on executing the mentally retarded, Georgia's statute,
and the majority decision upholding it, do not prohibit the state from
executing mentally retarded people. To the contrary, the State may still
execute people who are in all probability mentally retarded. The State may
execute people who are more than likely mentally retarded. The State may even
execute people who are almost certainly mentally retarded. Arguably, the beyond
a reasonable doubt standard excludes from protection all persons whose deficits
in intellectual functioning cannot be determined by merely looking at them.
Such a harsh standard of proof flies in the face of the constitutional
prohibition against the execution of those with intellectual disabilities. The
Supreme Court did not rule that only the most severely intellectually disabled
are to be protected from execution. It ruled that all intellectually disabled
persons are protected. Georgia's requirement that capital defendants prove
their intellectual disabilities beyond a reasonable doubt is, therefore,
illegal under Atkins.
Certainly, Warren Hill would be able to prove that he is constitutionally
exempted from execution in almost any other state in the nation. That he is
scheduled to be executed because he cannot meet an impossible standard of proof
utilized by only one state is beyond tragic. Georgia's constitutionally
impermissible use of a beyond a reasonable doubt standard of proof should
prompt the Supreme Court to stay Hill's execution. He has proven his
intellectual disabilities by a preponderance of the evidence — the only
reasonable standard of proof by which such claims should be judged, and the
standard of proof that in almost every state allows the protections afforded
under Atkins to be fulfilled.
(source: Terrica Ganzy is a Staff Attorney with the Law Firm of the Southern
Center for Human Rights. She earned her B.A. from Tougaloo University in
English and Humanities and graduated from the University of Virgina School of
Law; The Jurist)
ALABAMA:
Alabama death row inmate Thomas Arthur appeals federal court decision
Thomas Arthur, convicted of the contract killing of a Muscle Shoals man in
1982, is appealing a federal judge's recent refusal to consider his claim that
his trial attorney was ineffective.
The appeal is 1 of 2 the Alabama death row inmate has pending in the federal
court system as he tries to stave off his execution and gain his freedom.
Arthur's execution has been postponed 5 times in the past 11 years.
Arthur's attorney, Suhana S. Han, on Friday filed a notice that Arthur is
appealing to the 11th Circuit Court of Appeals the ruling in June by U.S.
District Court Judge Scott Coogler.
Han had filed a motion in May asking Coogler to reconsider a 2002 ruling by a
judge who had refused to consider a motion by Arthur that his trial attorney
was ineffective because Arthur had missed a deadline for filing that claim. The
motion states that "no court has ever reviewed on the merits Mr. Arthur's
ineffective assistance of counsel claim."
Coogler in a 25-page opinion on June 20 denied Arthur's motion.
Arthur's appeal of Coogler's decision is the 2nd one the death row inmate has
before the 11th Circuit Court of Appeals.
In March a panel of the 11th Circuit reversed a federal judge's ruling that
dismissed an appeal by Arthur regarding the state's use of one a new drug in
it's 3-drug combination used in lethal injection executions. The state of
Alabama has asked for a hearing on the issue before the entire 11th Circuit
Court.
The 11th Circuit also in March issued a stay of Arthur's execution until
further notice. Arthur's execution had been set for March 29.
(source: Birmingham News)
COLORADO:
3 inmates jailed on death row; Colorado has not executed a prisoner since 1997
While prosecutors in Arapahoe County ponder whether to seek the death penalty
for theater shooting suspect James Holmes, the state still maintains its
execution room at Colorado State Penitentiary.
"The death chamber still is at CSP. An execution would be at CSP at this point
in time," said Katherine Sanguinetti, Colorado Department of Corrections
spokeswoman.
The state has 3 death row inmates — all incarcerated at Sterling Correctional
Facility. All 3 were convicted for murders in Arapahoe County, where Holmes
also is accused of killing 12 patrons and wounding another 58 on Friday at an
Aurora movie theater.
Nathan J. Dunlap, 38, is the old-timer, having been on death row since 1996. He
was convicted of murdering 4 people in 1993 at an Aurora pizza restaurant.
"Dunlap has exhausted all his appeals except to the U.S. Supreme Court,"
Sanguinetti said.
Also on death row are co-conspirators Sir Mario Owens, 27, and Robert Ray, 26.
Owens was sentenced to death for the 2005 shooting deaths of Javad
Marshall-Fields and his fiancee, Vivian Wolfe. Fields had been scheduled to
testify as a witness against Owens and Ray in connection with the 2004 slaying
of Gregory Vann in Aurora.
Ray was sentenced to death in 2010 for ordering the murders that Owens
committed and his part in the Vann slaying.
15 years ago, the number of death row inmates was 5. One of them actually was
executed and only 1 — Dunlap — remains on death row. The state's last execution
came Oct. 13, 1997, when Gary Lee Davis, 53, was given a lethal injection at
Colorado State Penitentiary in Canon City.
(source: The Pueblo Chieftain)
******************
Colo. prosecutor put 2 of 3 inmates on death row
The lead prosecutor handling the mass shooting in a Denver suburb says it will
be months before there's a decision on whether to pursue the death penalty, and
she'll decide only after talking to victim families.
District Attorney Carol Chambers' office is responsible for the convictions of
2 of the 3 people on Colorado's death row.
A sociology professor at the University of Colorado at Boulder who tracks such
cases says she's also the only state district attorney to seek the death
penalty in a case in the past five years.
Colorado uses the death penalty relatively sparingly. There has only been 1
execution since it was reinstated in 1976. The state Legislature fell 1 vote
short of abolishing capital punishment in 2009.
(source: Associated Press)
OREGON:
Oregon death row inmate fighting reprieve
Oregon death row inmate Gary Haugen is due in court Tuesday in Salem for a
hearing on his request to invalidate a reprieve that has spared his life.
The civil lawsuit in Marion County Circuit Court challenges the reprieve
granted in November by Gov. John Kitzhaber.
Haugen wants to proceed to the death sentence he was given 5 years ago after he
was convicted of the 2003 killing of a fellow inmate. Haugen was serving a life
sentence at the time for a 1981 murder.
Oregon has executed 2 people since voters reinstated the death penalty in 1984.
Kitzhaber has said there would be no executions as long as he is governor.
(source: Associated Press)
CALIFORNIA:
Oakland man facing death penalty had horrific childhood, family members say
By age 12, David Mills was forced by his mother to sell drugs on the streets of
East Oakland, beginning a shocking and troubling family rite of passage that
was quickly followed by his younger brother and sister, family members
testified in court Monday.
Proceeds from those drug sales were used to keep a roof over the family's head
and to feed Mills' mother's growing drug-selling enterprise, and Mills watched
as a constant river of drug users and sellers congregated at his home, the
family members said.
"I used to pray and ask God to look after those kids because they didn't have
the support of their mother," said Verlenia Murphy, Mills' cousin. "She put
those kids through a lot."
Murphy, along with Mills' father and younger brother, testified Monday as
defense attorneys for the convicted triple murderer and animal abuser attempted
to convince a jury to send their client to prison for life instead of death
row.
Mills, 37, faces the death penalty after the jury found him guilty last month
of murdering James Martin, 28, Dale Griffin, 36 and Rebecca Martinez, 22, in
2005 as the 3 sat in a car in front of Mills' father's house. Mills was also
found guilty of attempted murder for shooting another person in the car,
Elizabeth Martinez, and 2 counts of animal cruelty for killing a dog and
wounding a 2nd one during the shooting.
Mills' attorney, William Linehan, has told the jury that Mills' troubled life
should not be viewed as an excuse for what he did. But, he said, the jury
should consider it when deciding if his client should be executed or whether he
should "rot in captivity and die when God thinks it's the right time."
Mills' family members testifying for the defense in the penalty phase of the
trial told stories about Mills' childhood, which his attorney described as
chaotic and beyond dysfunctional.
Mills barely attended school, learning instead on the streets of East Oakland,
which his self-described schizophrenic and alcoholic father called "Vietnam."
"It was dangerous, very dangerous, a war zone, people getting shot," said
Mills' father, Duthal Barnes Jr. "Out of every four houses, one of them had
something to do with drugs."
Barnes said Mills was born as a result of a relationship he had with Mills'
mother, Rosie Murphy, whom he married about a year after his son's birth. But
the marriage was based on physical attraction, Barnes said, adding, "love did
not enter our lives."
When Mills was about a year old, Barnes said, Rosie Murphy said she no longer
wanted to care for her child and sent Mills to stay with Barnes, despite his
struggles with alcohol and mental illness.
Barnes said he tried his best to care for his son but when stress levels
reached a certain point, his schizophrenia would take over, resulting in him
being sent to a mental hospital. Barnes estimated that he had been in and out
of mental hospitals at least four times during Mills' childhood.
One time, Barnes recalled, he was arrested by police after he walked to an
elementary school and began shouting at children that they had to attend class.
"That was during a time when I was acting bizarre," Barnes said. "In my mind I
thought school children had to go to school and I thought I was an
authoritarian. I said these kids need to go to school."
When Barnes was sent to a hospital, Mills went to live with his mother in an
apartment relatives described as a drug den. By age 10, Mills ran away from his
father to live with his mother, in part, his brother said, because his mother
didn't care what her children did as long as they sold drugs for her.
"That's all I seen, was drug transactions," said Mills' brother, Duthal Barnes
III. "(My mom's) children didn't go to school and graduate, we all went to the
penitentiary."
Mills' mother is expected to testify Tuesday.
(source: Mercury News)
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